Delhi High Court - Orders
Ms Puja Kapoor & Anr vs Shri Subhash Kapoor & Anr on 13 February, 2019
Author: Manmohan
Bench: Manmohan
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 3007/2015
MS PUJA KAPOOR & ANR ..... Plaintiffs
Through Mr.Rakesh Aggarwal, Advocate.
versus
SHRI SUBHASH KAPOOR & ANR ..... Defendants
Through Mr.Ajay Majithia with Mr.Rohit
Arora, Advocates.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 13.02.2019 I.A.No.5836/2018 Even at the passover stage, learned counsel for the defendants/applicants prays for another passover. Since the policy of this Court is to grant a passover only once, the said prayer is declined.
A perusal of the present application filed under Order VII Rule 11 CPC shows that the same is premised on the basis that the suit property, whose partition has been sought, is a self acquired property of deceased defendant no.1 and there are no documents on record to show that it is an HUF or ancestral property.
It is further stated in the application that as the husband of plaintiff no.1 had expired before the death of his father, he never inherited any part of the property owned by the father and by virtue of the last Will dated 24th November, 2015 of the deceased father, the plaintiffs have no right and/or title in the property.
However, learned counsel for the plaintiffs points out that under the Settlement Deed dated 03rd July, 2013 (annexed with the First Motion of Divorce in terms of Section 13(B)(1) of the Hindu Marriage Act, 1955), the deceased defendant no.1 as well as defendant no.2 (as a conforming party) had admitted that the suit property was an ancestral property. He further states that the alleged last Will dated 24th November, 2015 of deceased defendant no.1 had been obtained by coercion and undue influence.
Keeping in view the fact that in the aforesaid Settlement Deed dated 03rd July, 2013 (annexed with the First Motion of Divorce), the suit property has been mentioned as ancestral property not only by the plaintiff‟s deceased husband but also by deceased defendant no.1 (father-in-law of the plaintiff) and the said fact has been confirmed by the defendant no.2, this Court is of the view that a disputed question of fact and law arises in the present proceedings.
Consequently, the present application is dismissed. However, it is clarified that this Court while framing the issues shall frame amongst others the issues (i) "as to whether the suit property was a self acquired property of deceased defendant no.1"
and (ii) "whether the document dated 24th November, 2015 is the last validly executed Will of deceased defendant no.1".
CS(OS) No.3007/2015 & I.A.No.7417/2018 List for hearing on 23rd May, 2019.
MANMOHAN, J FEBRUARY 13, 2019/KA